603 F.3d 478 (8th Cir. 2010), 08-4004, United States v. Birbragher

Docket Nº:08-4004.
Citation:603 F.3d 478
Opinion Judge:SHEPHERD, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v. Orlando BIRBRAGHER, also known as Orlando Villarreal Birbragher, also known as Orlando Villarreal, Appellant.
Attorney:Alfredo G. Parrish, argued, Des Moines, IA, for appellant. Stephanie M. Rose, AUSA, argued, Cedar Rapids, IA, for appellee.
Judge Panel:Before WOLLMAN, JOHN R. GIBSON, and SHEPHERD, Circuit Judges.
Case Date:April 26, 2010
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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603 F.3d 478 (8th Cir. 2010)

UNITED STATES of America, Appellee,

v.

Orlando BIRBRAGHER, also known as Orlando Villarreal Birbragher, also known as Orlando Villarreal, Appellant.

No. 08-4004.

United States Court of Appeals, Eighth Circuit.

April 26, 2010

Submitted: Nov. 20, 2009.

Page 479

[Copyrighted Material Omitted]

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Alfredo G. Parrish, argued, Des Moines, IA, for appellant.

Stephanie M. Rose, AUSA, argued, Cedar Rapids, IA, for appellee.

Before WOLLMAN, JOHN R. GIBSON, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Orlando Birbragher conditionally pled guilty to conspiracy to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), 841(b)(1)(D)(2), 846, 856(a)(1), and 861(a)(1), and conspiracy to launder money from the drug conspiracy, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956(a)(1)(B)(i), 1956(h), and 1957. The district court 1 sentenced Birbragher to 35 months imprisonment to be followed by a two-year term of supervised release. The court also entered a preliminary forfeiture order of $2,465,209.92.2 Birbragher appeals the denial of his motion to dismiss the indictment, contending that the Controlled Substances Act (CSA), 21 U.S.C. §§ 801-971, is unconstitutionally vague as applied to him. Birbragher also challenges his sentence. We affirm the district court's denial of Birbragher's motion to dismiss the indictment and dismiss Birbragher's appeal of his sentence in accordance with his appeal waiver.

I.

Because Birbragher moves to dismiss the drug conspiracy charge on the ground

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that the CSA is unconstitutionally vague as applied to the allegations in the indictment, we consider the facts as alleged in the indictment. See United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975) (" It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand." ); see also United States v. Farm & Home Sav. Ass'n, 932 F.2d 1256, 1259 n. 3 (8th Cir.1991) (providing that, in considering a motion to dismiss an indictment, " we accept the government's allegations as true, without reference to allegations outside the indicting document" ) ( citing Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 343 & n. 16, 72 S.Ct. 329, 96 L.Ed. 367 (1952)).

Between approximately January 2003 and May 20, 2004, Birbragher and Marshall Kanner were the principal owners and operators of Pharmacom International Corporation (" Pharmacom" ), a company that used the internet to distribute prescription drugs, including Schedule III and IV controlled substances, for which a valid prescription is required.3 Pharmacom conducted these transactions through a website, www. buymeds. com, and other affiliated websites. Internet users logged onto one of these websites " and placed orders for prescription drugs." (Indictment ¶ 13.) The individuals completed a short health history questionnaire and provided credit card payment information. Pharmacom did not verify the customers' identities or require them to submit any medical records during this process.

Doctors, who had contracted with Pharmacom, reviewed " the prescription drug orders." ( Id. ) Among the doctors Pharmacom hired were Armando Angulo, employed from July 2003 to February 2004, and Peter Lopez, employed from October 2003 to April 2004. Angulo was a Florida resident licensed to practice medicine in Florida. Lopez was not licensed to practice medicine anywhere in the United States. The doctors approved the orders without an in-person examination, and, generally, without reviewing any medical records. Occasionally, the doctors emailed or called a customer on the telephone. If the doctor " approve[d] a drug order," Pharmacom " digitally affixed" the doctor's electronic signature to a " prescription" created by its computers. ( Id. )

Pharmacom contracted with pharmacies to fill the " approved ‘ prescription’ orders." ( Id. ) They were batched and downloaded from Pharmacom's website by the pharmacies, who then filled and shipped them to customers throughout the United States. For example, Union Family Pharmacy (" Union Family" ) of Dubuque, Iowa, filled " prescriptions" for Pharmacom from August 18, 2003, through September 12, 2003. Jack Huzl, a licensed pharmacist in Iowa and Colorado, owned and operated Union Family. Huzl hired Douglas Bouchey, a pharmacist licensed in Iowa and Michigan, to fill Pharmacom's " prescriptions." Union Family filled at least 4,195 " prescriptions" for Pharmacom and distributed at least 180,430 Schedule III and 53,310 Schedule IV dosage units. Union Family shipped the vast majority of these " prescriptions" to customers outside Iowa, even though Union Family was only registered as a pharmacy in Iowa.

Collectively, Pharmacom's doctors and pharmacies authorized and filled more than 246,000 " prescriptions" for controlled substances, totaling over 12.5 million

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Schedule III dosage units and more than 1.9 million Schedule IV dosage units. Pharmacom's customers paid in excess of $40 million for these " prescriptions." Pharmacom used the proceeds of this unlawful activity to pay contracting doctors approximately $2.29 million for authorizing " prescriptions." Pharmacom paid approximately $2.26 million to the pharmacies for filling the orders. The funds deposited into the bank accounts of the doctors and the pharmacies allowed them to continue operating as critical members of the drug conspiracy. Pharmacom also paid approximately $7.75 million to acquire the Schedule III and IV controlled substances; $1.60 million for shipping costs; $3.14 million for marketing costs, including internet advertising; and $1.99 million to its employees to help operate its business. These financial transactions totaled approximately $19 million.

Birbragher, along with Kanner, Huzl, Bouchey, Angulo, and Lopez (collectively " codefendants" ), and others acting at their behest, shifted drug proceeds to shell corporations that they had created to conceal the nature, location, source, ownership and control of the proceeds. The shell corporations were almost all Florida corporations, with the exception of one corporation registered in the U.S. Virgin Islands. Pharmacom also sent money to various bank accounts or trust accounts controlled by or for the benefit of Birbragher's relatives or Kanner's relatives. Birbragher, his codefendants, and others working at their behest, conducted at least 859 money-laundering transactions involving $10,000 or more in drug proceeds.4

On November 7, 2007, Birbragher and his codefendants were charged in a 31-count indictment.5 Birbragher was charged in Count I, a drug conspiracy with multiple objects, and Count II, a multiple object conspiracy to launder money from the drug conspiracy alleged in Count I.

With regard to the drug conspiracy, the indictment alleges that between approximately January 2003 and May 20, 2004, " in the Northern District of Iowa and elsewhere," Birbragher, his codefendants, and others conspired to violate the CSA, specifically, 21 U.S.C. § 846. ( See Indictment ¶ 11.) The drug conspiracy had four objects:

1) To dispense and cause to be dispensed Schedule III controlled substances outside of the usual course of professional practice and without legitimate medical purpose, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(D); and

2) To dispense and cause to be dispensed Schedule IV controlled substances outside of the usual course of

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professional practice and without legitimate medical purpose, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(D)(2);

3) To knowingly open, lease, rent, use, and maintain pharmacy fulfillment centers for the purpose of distributing Schedule III and Schedule IV controlled substances outside the usual course of professional practice and without legitimate medical purpose, in violation of Title 21, United States Code, Section 856(a)(1); and

4) To knowingly and intentionally employ, hire, persuade, induce, entice, and coerce [minors], to violate the drug laws by dispensing and causing to be dispensed Schedule III and Schedule IV controlled substances outside of the usual course of professional practice and without legitimate medical purpose, in violation of Title 21, United States Code, Section 861(a)(1).

This is in violation of Title 21, United States Code, Section 846.

(Indictment ¶ 11.)

As to the money laundering conspiracy, the indictment alleges that between approximately January 2003 and August 9, 2004, " in the Northern District of Iowa and elsewhere," Birbragher, his codefendants, and others conspired to conduct, and attempt to conduct, financial transactions involving the proceeds of the Count I drug conspiracy (" the unlawful activity" ), in violation in 18 U.S.C. § 1956(h). The money laundering conspiracy had three objects:

1) To conduct and attempt to conduct one or more financial transaction(s) which involved the proceeds of specified unlawful activity, that is the illegal dispensing of Schedule III and IV controlled substances, in violation of Title 21, United States Code, Section 841(a)(1), knowing that the property involved in the financial transaction(s) represented the proceeds of unlawful activity, with the intent to promote the carrying on of the specified unlawful activity, in violation of Title 18, United States Code, Section 1956(a)(1)(A)(i);

2) To conduct and attempt to conduct one or more financial transaction(s) which involved the proceeds of specified unlawful activity, that is the illegal dispensing of Schedule III and IV controlled substances, in violation of Title 21, United States Code, Section 841(a)(1), knowing that the property involved in the financial transaction(s) represented the proceeds of unlawful...

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